United States of America v. Kenneth Junior Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4454
KENNETH JUNIOR SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-98-1169)
Submitted: December 29, 1999
Decided: February 8, 2000
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Rene Josey, United States Attorney, Harold Watson
Gowdy, III, Assistant United States Attorney, Greenville, South Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

-- 1 of 3 --

OPINION
PER CURIAM:
Kenneth Junior Smith was convicted by a jury of conspiracy to
possess with intent to distribute and to distribute crack cocaine (21
U.S.C. § 846 (1994)) and possession with intent to distribute and dis-
tribution of crack cocaine (21 U.S.C. § 841(a)(1) (1994)). He was
sentenced on each count to life imprisonment under 21 U.S.C.
§ 841(b) (1994), which provides that any person who violates
§ 841(a), where the violation involves fifty grams or more of cocaine
base and the defendant has two or more prior convictions for a felony
drug offense, faces a sentence of life imprisonment.
Smith appeals claiming that the threshold drug amounts provided
under § 841(b) are elements of the offense--rather than sentencing
factors--which must be alleged in the indictment and proved beyond
a reasonable doubt. Because the drug quantity was not mentioned in
the indictment, nor proved as an element of the offense, Smith claims
that the statutory maximum sentence is thirty years per count, pursu-
ant to § 841(b)(1)(C).
Smith relies on the Supreme Court's recent decision in Jones v.
United States, 526 U.S. 227 (1999), which held that, with respect to
the federal carjacking statute, factors that substantially increased a
defendant's sentence are elements of the offense, rather than sentenc-
ing enhancements. However, no other circuit has extended Jones to
the statute at issue here. See United States v. Williams, 194 F.3d 100
(D.C. Cir. 1999) (declining to extend Jones to § 841(b), holding that
drug quantity is a sentencing factor, not an element of the offense);
United States v. Jones, 194 F.3d 1178, 1185 (10th Cir. 1999) ("We
find no holding in Jones that mandates we upset our § 841(b)(1) sen-
tencing jurisprudence, which interprets that section as setting forth
penalty provisions, rather than separate offenses."). We also decline
to extend Jones to § 841(b).
Accordingly, we grant Smith's motion to file a supplemental pro
se informal brief and affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
2

-- 2 of 3 --

als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
3

-- 3 of 3 --